NCAA, conferences cite loophole in court's logic, move to dismiss lawsuits

September 5, 2014

The NCAA and 11 of its athletic conferences filed a motion late Thursday seeking the dismissal of a series of federal lawsuits that aim to dramatically remake the current system governing scholarships for college athletes and open the door to higher compensation for players.

And the crux of their argument is that despite last month's landmark ruling against them, which concluded that college athletes should be compensated for the use of their names, images and likenesses, another ruling from the same judge supports the right of the NCAA to place limits on the compensation that can be offered to players.

The motion comes after NCAA President Mark Emmert vowed to appeal the ruling in the case of former UCLA basketball player Ed O'Bannon, who challenged the right of video game makers to use his likeness without compensating him. In a 99-page ruling, U.S. District Judge Claudia Wilken concluded that the current system, which shared none of the revenues generated from the use of the athletes' names, images and likenesses with the players themselves, violated federal antitrust laws.

But Wilken also ruled that some limits are appropriate, concluding, for instance, that the compensation that athletes could be paid while they are students could not exceed the actual cost of attending school.  And she also ruled that schools can place money from the use of players' names, images and likenesses in trust for athletes that can be paid to them once they leave school or exhaust their eligibility — but that the amount can be capped by the NCAA and its member colleges and universities.

Attorneys for the NCAA and the 11 conferences pointed to earlier court rulings that they contend are consistent with the limits Wilken established in her ruling in the O'Bannon case.

"This court's conclusion in O'Bannon that the NCAA and its members may lawfully adopt and enforce some limitations on the amount of compensation that student-athletes may receive for their participation in intercollegiate athletics is consistent with those decisions," they wrote in their motion, filed in federal court in Oakland. "Because plaintiffs cannot plead a plausible claim that any such limitation violates the antitrust laws, they cannot show that they are entitled to the relief they seek, and their antitrust claims should be dismissed in their entirety."

The NCAA and the conferences have asked for a hearing Oct. 9 before Judge Wilken to argue their motion.

All of the suits contend the current system, which has been in place for decades and caps a full-ride athletic scholarship at the cost of tuition, fees, books required for classes, room and board, violates federal antitrust laws.

One of the suits, filed on behalf of four current and former college athletes, seeks to throw out the current system and allow schools to compete on the open market to obtain the services of the athletes they want to represent them. That suit would cover players in the Football Bowl Subdivision as well as Division I men's basketball players.

The other six lawsuits, filed on behalf of 16 current and former college athletes, were consolidated under Wilken's jurisdiction. They seek to modify the current system to require schools to pay scholarship athletes the actual cost of attending school, which can include numerous incidental outlays that aren't provided. Those can include travel home at the holidays, transportation and books that are recommended for classes but not required. That batch of suits also would cover Division I women's basketball players.

The named plaintiffs in the various suits are 13 football players, four men's basketball players and three women's basketball players. See a complete list here.

The suit seeking to let the free market prevail named the NCAA and the so-called "power conferences": the Atlantic Coast Conference, the Big 12, the Big Ten, the Pac-12 and the Southeastern Conference.

The other group of suits was filed against the NCAA, the power conferences and six other conferences: the American Athletic Conference, Conference USA, the Mid-American Conference, the Mountain West, the Sun Belt and the Western Athletic Conference.

Attorneys for the NCAA and the athletes could not be reached for comment late Thursday.

The antitrust suits come at a time when a discussion is raging about whether college athletes should be paid something in excess of the cost of a scholarship. Already, the NCAA has relaxed the rules governing the 65 schools in the five power conferences, paving the way for them to pay athletes a stipend above and beyond the value of a full-ride scholarship. The idea is that money would cover incidental expenses incurred by student-athletes.

The suits all focused on the same point: Big-time college sports is big business.

The first of the suits, filed by former West Virginia running back Shawne Alston, noted that big-time college football, particularly in the Football Bowl Subdivision, generates "billions of dollars a year in revenue."

"Not a single dollar of that revenue, however, would exist if it were not for the efforts of the Football Bowl Subdivision football players themselves," the suit says.

According to the suit, a full-ride scholarship often falls several thousand dollars short of covering the actual cost of attending college. Players are left without money for gasoline, food and other expenses they incur, the suit alleges.

"While players scrimp, coaches and universities most certainly do not," the suit alleges. "The average salary for major college football coaches is over $2 million, with some coaches earning over $7 million. The top football schools earn enormous amounts from football."

It pointed to the University of Texas, which had $109 million in football revenue in the 2011-2012 fiscal year, and claimed that the school had a "profit" of $81.7 million after the cost of fielding a team was deducted.

The six suits that were consolidated, including Alston's, aim to abolish the current system and pay damages to players who competed anytime since March 5, 2010, in one of the 11 conferences.

The seventh suit was brought by Martin Jenkins, a cornerback for Clemson; Johnathan Moore, a basketball player at Pittsburgh and Rutgers; Kevin Perry, a former tight end at Texas-El Paso; and William Tyndall, an offensive lineman at Cal.

Like the other suits, it alleges that the current system is generating billions of dollars in revenues and it accused the NCAA and the power conferences of entering into "what amounts to cartel agreements with the avowed purpose and effect of placing a ceiling on the compensation that may be paid to these athletes for their services."

"The plaintiffs — four current top-tier college football and men's basketball players, along with the class members whom the players seek to represent — are exploited by defendants and their member institutions under false claims of amateurism," the suit alleges. "The defendants and their member institutions have lost their way far down the road of commercialism, signing multibillion-dollar contracts wholly disconnected from the interests of 'student athletes,' who are barred from receiving the benefits of competitive markets for their services even though their services generate massive revenues."

That suits seeks to abolish existing NCAA rules limiting compensation to "grant-in-aid" and stopping the governing body of college sports and the power conferences from preventing any school from "negotiating, offering, or providing remuneration" to football and basketball players "in compensation for their services as athletes."

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